Opinion of the Court. jury returned an indictment against John Pointer for the crime of murder. In the first count it was charged that the defendant, on the 25th of December, 1891, at the Choctaw Nation, in the Indian country, within the above district, did, with an axe, feloniously, wilfully, and of his malice aforethought, "strike, cut, penetrate, and wound" upon the head one Samuel E. Vandiveer, a white man and not an Indian, inflicting thereby a mortal wound, from which death instantly ensued. The second count charged the same offence, and differed from the first only in using the words "beat, bruise," in place of "cut, penetrate." In the third count the defendant was charged, in the words of the first count, with having, in the same manner, on the 25th of December, 1891, feloniously, wilfully, and of his malice aforethought, at the Chocktaw Nation, in the Indian country, within the same district, killed and murdered one William D. Bolding, a white man and not an Indian. The fourth count differed from the third only as the second count differed from the first. The defendant pleaded not guilty. On a subsequent day of the term he moved to quash the indictment upon various grounds, one of which was that it charged two distinct felonies. That motion was overruled. The defendant called the attention of the court to the fact that he had been served some time before with a list of thirtyseven jurors, and, subsequently, with an additional list. He objected to that mode of serving lists of jurors by "piecemeal." To this the court replied: "In the first place, the list of thirty-seven was served; and it always happens that some of the original thirty-seven cannot serve, by reason of incompetency or sickness, and, out of abundance of precaution, we had the additional list served on the defendant, so that there will be a sufficient number served to go on with the trial of the case, without waiting for two days' service on the defendant when the case is called for trial. It is not a service by piecemeal, but service of additional talesmen." The entire panel of the petit jury was called and the jurors were examined as to their qualifications, and, the journal entry Opinion of the Court. states, thirty-seven in number were found to be generally qualified under the law, that is, in the words of the bill of exceptions, "qualified to sit on this case." The defendant and the government were then furnished, each, with a list of the thirty-seven jurors thus selected, that they might make their respective challenges, twenty by the defendant and five by the government, the remaining first twelve names, not challenged, to constitute the trial jury. The defendant at the time objected to this mode of selecting a jury: "1st, because it was not according to the rule prescribed by the laws of the State of Arkansas; 2d, because it was not the rule practised by common law courts; 3d, because the defendant could not know the particular jurors before whom he would be tried until after his challenges, as guaranteed by the statutes of the United States, had been exhausted; 4th, because the government did not tender to the defendant the jury before whom he was to be tried, but tendered seventeen men instead of twelve, and made it impossible for defendant to know who the twelve men before whom he was to be tried were until after his right to challenge was ended." At the time this objection was made the defendant's counsel saved an exception to the mode pursued in forming the jury, and said: "The point we make is, that the government must offer us the twelve men they want to try the case." The court observed: "They offered you thirty-seven." "We understand," counsel said, "but we want to save that point." Before the case was opened to the jury for the government, the defendant moved that the district attorney be required to elect on which count of the indictment he would claim a conviction. That motion having been overruled, he was required to go to trial upon all the counts. Upon the conclusion of the evidence the defendant renewed the motion that the government be required to elect upon which count of the indictment it would prosecute him. This motion was overruled. After an elaborate charge, by the court, the jury retired to consider their verdict, and returned into the court the following: "We, the jury, find the defendant John Pointer guilty of murder as charged in the first Opinion of the Court. count of the indictment. F. M. Barrick, Foreman. We, the jury, find the defendant John Pointer guilty of murder as charged in the third count of the indictment. F. M. Barrick, Foreman." A motion for a new trial was made and overruled, and on the 30th of April, 1892, the court sentenced the defendant to suffer the punishment of death. 1. The motion to quash the indictment and the motion to require the government to elect upon which count it would try the defendant, present the question whether two distinct charges of murder can properly be embraced in one indict ment. It is provided by section 1024 of the Revised Statutesfollowing, substantially, the words of the act of February 26, 1853, c. 80, 10 Stat. 161, that "when there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offences, which may be properly joined, instead of having several indictments, the whole may be joined in one indictment, in separate counts; and if two or more indictments are joined in such cases, the court may order them to be consolidated." Although the two murders in question are alleged to have been committed by the defendant on the same day, and in the same county and district, it does not affirmatively appear from the indictment that they were the result of one transaction, or that they were "connected together." But the indictment does show upon its face that the two offences are of the same class or grade of crimes, and subject to the same punishment. Could both crimes properly be joined in one indictment, in separate counts? The statute does not solve this question, but leaves the court to determine whether, in a given case, a joinder of two or more offences in one indictment against the same person is consistent with the settled principles of criminal law. If those principles permit the joinder of two or more felonies in the same indictment, in separate counts, then the joinder in question here was proper. Opinion of the Court. In People v. Gates, 13 Wend. 311, 322, 323, Chief Justice Savage, speaking for the court, said: "The first question arising upon the trial was whether the court should have compelled the district attorney to elect which count he would go upon. In Young v. The King, 3 T. R. 106, Buller, Justice, says that where different felonies are included in the same indictment, the judge may quash the indictment, lest it should confound the prisoner in his defence; but these are only matters of prudence or discretion. This court has recently said in the case of People v. Rynders, 12 Wend. 425, that there is no impropriety in trying a prisoner for different offences, at the same time, if the offences are charged in the same indictment and are of the same grade, and subject to the same punishment." Substantially to the same general effect are the decisions of other American courts: United States v. O'Callahan, 6 McLean, 596; Kane v. People, 8 Wend. 203, 211; Calloway v. Commonwealth, 5 Met. 532, 534; Commonwealth v. Gillespie, 7 S. & R. 469, 476; Commonwealth v. Hills, 10 Cush. 530, 533; Campbell v. State, 9 Yerger, 333, 335; Burk v. State, 2 H. & J. 426, 429; Storrs v. State, 3 Missouri, 7; Baker v. State, 4 Pike, 56, 58; Wright v. State, 4 Humph. 194, 196; Johnson v. State, 29 Alabama, 62, 67; Weinzorpflin v. State, 7 Blackford, 186, 188; State v. Hazard, 2 R. I. 474, 482; Hoskins v. State, 11 Georgia, 92, 95. See, also, Logan v. United States, 144 U. S. 263, 296. The rule in England is not materially different. In 1 Chitty's Criminal Law, 252, 253, it is said: "In cases of felony, no more than one distinct offence or criminal transaction at one time should regularly be charged upon the prisoner in one indictment, because, if that should be shown to the court before plea, they will quash the indictment lest it should confound the prisoner in his defence, or prejudice him in his challenge to the jury; for he might object to a juryman's trying one of the charges, though he might have no reason so to do in the other; and if they do not discover it until afterwards, they may compel the prosecutor to elect on which charge he will proceed." "But," the author adds, "this is only matter of prudence and discretion which it rests with the judges to ex VOL. CLI-26 Opinion of the Court. ercise." The rule is thus stated by Archbold (Crim. Pl. Pr. 95, c. 3, 8th ed.): "If different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment on that account in point of law. In cases of felony, indeed, the judge, in his discretion, may require the counsel for the prosecutor to select one of the felonies, and confine himself to that. This is what is technically termed putting the prosecutor to his election. But this practice has never been extended to misdemeanors." In Roscoe's Criminal Evidence, 8th Am. ed., 206, the author, after observing that there was no objection in point of law to inserting, in separate counts of the same indictment, several distinct felonies of the same degree and committed by the same offender, and that such joinder was not a ground for arrest of judgment, says: "In practice, where a prisoner was charged with several felonies in one indictment, and the party had pleaded, or the jury were charged, the court in its discretion would quash the indictment, or if not found out till after the jury were charged, would compel the prosecutor to elect on which charge he would proceed." The question of election between distinct charges has always seemed to depend on the special circumstances of the case in which it has arisen. For instance, in Regina v. Trueman, 8 Car. & P. 727, which was an indictment for arson, containing five separate counts, each charging the firing of a house of a different owner, it appeared from the opening by the prosecutor that the houses in question constituted a row of adjoining houses, and that the fire was communicated to four of them from the one first set on fire. As the burning of each house was a distinct felony, the prisoner asked that the prosecutor be put to his election. Erskine, J., said: "As it is all one transaction, we must hear the evidence, and I do not see how, in the present stage of the proceedings, I can call on the prosecutor to elect. I shall take care that, as the case proceeds, the prisoner is not tried for more than one felony. The application for a prosecutor to elect is an application to the discretion of the judge, founded on the supposition that the case extends to more than one charge, and |